Deutsche Bank Natl. Trust Co. v. Vigue
2017 Ohio 7037
| Ohio Ct. App. | 2017Background
- Deutsche Bank sued in September 2015 to obtain judgment on a note and to foreclose a mortgage on 6 S. Otterbein Ave., Westerville, Ohio.
- The borrower, Mitchell Vigue, died in 2006; his death was admitted in the pleadings.
- The note (dated Dec. 8, 2003) and mortgage (recorded Dec. 11, 2003) were produced by Deutsche Bank’s servicer with a payment history showing default beginning Jan. 1, 2010 and an outstanding principal balance.
- Deutsche Bank moved for summary judgment (July 2016); Vigue opposed, arguing the bank should have presented its claim to the probate court within six months of Mitchell Vigue’s death (R.C. 2117.06) and is therefore barred.
- The trial court granted summary judgment and entered a foreclosure decree, finding foreclosure is an in rem action not barred by the probate claims statute and noting Vigue submitted no Civ.R. 56 evidence disputing the loan, default, or amounts due.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deutsche Bank’s foreclosure is barred by R.C. 2117.06 for failure to present a claim to the probate court after borrower’s death | Foreclosure is an in rem action against property, not a personal claim against the decedent’s estate, so R.C. 2117.06 does not apply | The bank failed to present its claim to the probate court within six months of the decedent’s death, so the claim is barred | Court held foreclosure is in rem and not subject to R.C. 2117.06; not barred |
| Whether a recorded mortgage is exempt from the probate-claims bar | The recorded mortgage is a publicly recorded lien and thus falls under the exemption in R.C. 2117.10 | The timing of probate presentation nonetheless bars the bank | Court held recorded liens are exempt from R.C. 2117.06 under R.C. 2117.10; exemption applies |
| Procedural sufficiency of appellant’s briefing (assignments of error) | N/A (issue raised by appellee/trial record) | Vigue failed to include required assignments of error in her appellate brief | Court noted failure to include assignments of error could justify dismissal but exercised discretion to reach the merits |
Key Cases Cited
- None with official reporter citations are cited in the opinion (the court relied on this district’s prior unpublished/locally-cited decisions for illustrative authority).